Human rights legislation prohibits discrimination on the grounds of race, religion, sex, ethnic origin, disability, age, marital status and family status. What employer’s may not know is that discrimination based on the ground of family status includes any childcare obligations that the employee may have. This means that employers may have a duty to accommodate employees with childcare obligations.
Case Law Supports Families
In the case of SMS Equipment Inc. v. Communications, Energy and Paperworkers Union, Local 707, 2015 ABQB 162, it was found that an employer had discriminated against its employee, who was a single mother, when it failed to accommodate her childcare needs. It was found that the employer’s refusal to allow the employee to switch from rotating night and day shifts to straight day shifts and the excessive childcare costs associated had reasonably been regarded as discrimination on the basis of family.
Not only is it an employer’s duty to accommodate employees with childcare obligations, it is also a requirement on behalf of the employee to make reasonable attempts to first resolve childcare concerns before seeking accommodation from his or her employer. This effectively means that while an employer does have the obligation to accommodate its employees when it comes to family status, there is also a burden on the employee to make all reasonable efforts on their end to minimize the accommodation needed at work. The employee must first meet a minimum threshold to prove that he or she did, in fact, suffer some discrimination. Once the employee has met this threshold, the onus then switches to the employer to prove that accommodating the employee’s family needs would have caused “undue hardship”. In the aforementioned case, it was shown that the employer could have certainly accommodated the employee’s request for a shift change, however since it denied the reasonable accommodation, it was liable for discriminatory actions.
Courts expand Family Status to Work Schedule
The Ontario Court in Partridge v. Botony Dental Corporation, 2015 ONCA 836 held that changes to an employee’s work schedule were discriminatory on the basis of her family status. Lee Partridge had returned from parental leave and was not given back her previous job but instead was given a new position with increased hours which created a conflict for her children’s daycare pick up schedule. In this case, the court specifically held that the employer had acted unreasonably and awarded Patridge $20,000.00 in damages.
Similar to these decisions stated above, in Canadian National Railway v. Seeley, 2013 FC 117, the Federal Court of Appeal believed that the employer acted unreasonably in not providing pertinent information about new work arrangements to an employee and again the employee was able to establish that she was discriminated against on the ground of family status. The employee had asked her employer for an extension on returning to work so she could seek accommodation that would address her childcare needs. The employer refused her request and informed her that because she did not return back to work when asked they were terminating her employment. In the end, the employer was ordered to reinstate the employee and compensate her for lost wages, pay $15,000.00 for pain and suffering, and $20,000.00 for special compensation under the Canadian Human Rights Act.
If you would like more information on accommodation for family status from either an employer or employee perspective, contact us today.